Out of Sight

Earlier this month, the Supreme Court heard oral arguments in Perry v. New Hampshire, a case concerning the reliability of eyewitness testimony. It was the first time the Court had tackled the issue in 34 years. During those three-plus decades, we’ve learned a lot about eyewitness testimony—namely, just how unreliable it can be. For example, the Innocence Project, an organization that works to overturn wrongful convictions, has shown that, of the first 250 people exonerated by DNA testing, 190 were initially convicted due to flawed eyewitness identifications.

While eyewitness testimony is a necessary and inescapable part of the justice system, the problems it creates run deep. Erroneous identifications are especially difficult to expose under cross-examination because eyewitnesses so intensely believe their own unreliable memories—that is, unlike other people who give incorrect testimony, they may not know they are mistaken. What’s more, briefs filed in the Perry case make clear that highly confident eyewitness testimony tends to be given far too much weight by jurors, in contrast to other kinds of inaccurate testimony.

Given all this, lawyers for the defendant in Perry have argued that judges should scrutinize eyewitness testimony more carefully in certain situations than is currently the norm. Yet, based on the questions posed at oral arguments, neither the conservative justices nor the liberal ones seem inclined to take them up on their proposals. And even if they did, it wouldn’t lead to enormous changes, since Perry is a fairly narrow case.

Fortunately, there’s a solution in plain view that states are beginning to adopt. In Convicting the Innocent, a definitive study of the first 250 DNA exonerations, University of Virginia Law Professor Brandon Garrett found that, in 78 percent of the cases for which he obtained trial materials, the police contaminated eyewitness identification with suggestive procedures—such as conducting a lineup where the real suspect obviously stood out from the others or by somehow indicating, intentionally or otherwise, which person should be selected. Both of these errors could be easily avoided: the first by presenting suspects one by one, which makes it harder for eyewitnesses to make misleading comparisons, and the second by requiring that lineups be conducted by police officers who don’t know the identity of the real suspect. Other sensible reforms include instructing witnesses that the perpetrator may not be in the lineup and recording the proceedings, so that the witness’s certainty at the time of identification can be reviewed at trial. Currently, six states have passed eyewitness-reform statutes, while other states are studying the problem or adopting voluntary guidelines.

That’s the good news. The bad news is that flawed eyewitness procedures are only the tip of the iceberg when it comes to our criminal justice system’s willingness to tolerate wrongful convictions. Of those 250 people exonerated by DNA evidence, 17 had been sentenced to death and 80 had been sentenced to life in prison. The group as a whole spent an average of 13 years behind bars. And these cases were just the ones where DNA evidence was able to lead to a reversal. Even if the legal system is 99.9 percent accurate, it would mean that more than 2,000 innocent people are in prison, and, by many estimates, the number may be in the tens of thousands.

Of course, some error is unavoidable in any criminal justice system. But much of this error, and the terrible human suffering that results from it, could be prevented by a series of other simple reforms—measures that are currently being pushed across the country by the Innocence Project. Requiring that police interrogations are recorded from beginning to end, as 18 states now do, is the best protection against false confessions. Dubious testimony by jailhouse snitches could be exposed if the police were required to share with defense lawyers any secret deals they make with informants promising lenient treatment in exchange for cooperation. And unreliable forensic testimony by government experts could be discouraged if we required independent, blind auditing of the work of state crime labs—a procedure that some states have adopted. These reforms can be accomplished by state legislatures and Congress working in conjunction with courts, some of which have already ordered legislatures to act.

One model for reform is North Carolina’s Actual Innocence Commission, which has required increased access to DNA testing for convicted criminals, expanded the rules for preserving DNA evidence, and mandated the recording of homicide investigations. There’s nothing partisan about these reforms: Conservatives and liberals should have an equal interest in freeing the innocent and identifying the guilty—many of whom go on, while they are at large, to commit other crimes. In fact, at this deeply divided moment in American politics, it’s hard to think of a more urgent and bipartisan cause where the problem is so well-understood and the solutions are so clearly within reach.

This article appeared in the December 15, 2011, issue of the magazine.